Decision Date: 07/27/95 Archive Date: 01/17/96
DOCKET NO. 93-18 697 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to an increased disability evaluation for gunshot
wound residuals to the right shoulder, currently evaluated as
30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
INTRODUCTION
The veteran served honorably from July 1950 to July 1953.
This appeal arose from an October 1991 rating decision of the
Indianapolis, Indiana, Department of Veterans Affairs (VA),
Regional Office (RO), which denied an increased evaluation
for the veteran’s service-connected gunshot wound residuals.
This was confirmed and continued by a rating action issued in
February 1992; in August 1992, a rating action was issued
which granted service connection for a rotator cuff tear and
a biceps tendon rupture as secondary to his service-connected
gunshot wound residuals. The veteran testified at a personal
hearing in March 1993; in April 1994, a rating action was
issued which increased his disability evaluation to 30
percent, in accordance with the hearing officer’s decision
issued that same month.
A review of the record revealed that the veteran, through his
representative, appears to be raising claims for individual
unemployability and loss of use of the right upper extremity.
As these claims are not inextricably intertwined with the
issue on appeal, and have not been properly prepared for
appellate review at this time, they are hereby referred to
the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that his service-connected
gunshot wound residuals are more disabling than the current
disability evaluation would suggest. He asserted that he
suffers from constant, throbbing, pain and is, for all
intents and purposes, unable to use his right upper
extremity. He commented that he cannot raise this arm above
waist level. He also noted that the pain which he
experiences radiates into the right forearm and is
occasionally accompanied by numbness. Therefore, he asserts
that an increased disability evaluation is justified.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the evidence supports a finding of
entitlement to an increased evaluation for the gunshot wound
residuals of the right shoulder.
FINDINGS OF FACT
The veteran’s gunshot wound residuals of the right shoulder,
to include a compound comminuted fracture, are severe in
nature, and are manifested by constant throbbing pain, and
motion of the right arm limited to waist level.
CONCLUSION OF LAW
The criteria for a 40 percent disability evaluation for the
veteran’s gunshot wound residuals of the right shoulder have
been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991);
38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.10,
4.40, 4.72, Codes 5201, 5303 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well grounded within the meaning of 38
U.S.C.A. § 5107(a). That is, we find that he has presented a
claim which is plausible. We are also satisfied that all
relevant facts have been properly developed. The record is
devoid of any indication that there are other records
available which should be obtained. Therefore, no further
development is required in order to comply with the duty to
assist mandated by 38 U.S.C.A. § 5107(a).
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on the average impairment of earning capacity.
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994).
When a question arises as to which of two evaluations shall
be assigned, the higher evaluation will be assigned of the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1994).
VA has a duty to acknowledge and consider all regulations
which are potentially applicable based upon the assertions
and issues raised in the record and to explain the reasons
used to support the conclusion. Schafrath v. Derwinski, 1
Vet.App. 589 (1991). These regulations include, but are not
limited to, 38 C.F.R. § 4.1, that requires that each
disability be viewed in relation to its history and that
there be an emphasis placed upon the limitation of activity
imposed by the disabling condition, and 38 C.F.R. § 4.2 which
requires that medical reports be interpreted in light of the
whole recorded history, and that each disability must be
considered from the point of view of the veteran working or
seeking work. 38 C.F.R. § 4.10 states that, in cases of
functional impairment, evaluations are based upon lack of
usefulness, and medical examiners must furnish, in addition
to etiological, anatomical, pathological, laboratory and
prognostic data required for ordinary medical classification,
full description of the effects of the disability upon a
person's ordinary activity. This evaluation includes
functional disability due to pain under the provisions of 38
C.F.R. § 4.40. These requirements for the evaluation of the
complete medical history of the claimant's condition operate
to protect claimants against adverse decision based upon a
single, incomplete or inaccurate report and to enable VA to
make a more precise evaluation of the disability level and
any changes in the condition.
In rating disability from injuries of the musculoskeletal
system, attention is to be given to the deeper structures
injured, bones, joints and nerves. A compound comminuted
fracture, for example, with muscle damage form the missile
establishes severe muscle injury, and there may be additional
disability from malunion of bones, ankylosis, etc. 38 C.F.R.
§ 4.72 (1994).
According to the applicable criteria, a 30 percent evaluation
is warranted for moderately severe injury to Muscle Group III
(intrinsic muscles of the shoulder girdle) of the major upper
extremity. A 40 percent evaluation requires severe injury.
38 C.F.R. Part 4, Code 5303 (1994). A 30 percent evaluation
is warranted for limitation of motion of the major arm when
motion is possible to midway between the side and shoulder
level. A 40 percent evaluation requires that motion be
limited to 25 degrees from the side. 38 C.F.R. Part 4, Code
5201 (1994).
In the instant case, the veteran sustained a perforating
gunshot wound to the right shoulder on March 14, 1951. He
suffered a compound comminuted fracture of the humeral head
and the gentoid. He was placed in a Velpean cast. When this
cast was removed on March 21, two small puncture wounds were
visible, one on the lateral surface, the other on the medial.
There was no evidence of infection. An x-ray performed on
that day revealed a grooved defect in the upper end of the
humerus; no bone fragments were present in the adjacent soft
tissue. On March 22, 1951, diminished pinprick sensation was
noted on the right deltoid. By the 25th of that month, his
wounds were noted to be healing well. Range of motion had
improved. On the 27th, range of motion was even greater. On
March 30 , 1951, it was noted that his right shoulder wound
had completely healed. He was transferred for convalescence.
Following service, the veteran was examined by VA in January
1988. He complained of experiencing constant pain. Forward
elevation was to 100 degrees and abduction was also to 100
degrees. There was crepitus shown. An x-ray showed
narrowing of the subacromial space with calcification
suggesting degeneration of the rotator cuff tendon.
VA examinations were conducted in January 1990 and October
1991. The 1990 examination revealed his complaints of right
shoulder pain and severely limited range of motion. On
objective examination, the shoulder was noted to be diffusely
tender to palpation. Forward elevation was to 70 degrees;
abduction was to 40 degrees; external rotation was to 15
degrees; and internal rotation was to 20 degrees. An x-ray
revealed minimal degenerative changes in the right shoulder.
The diagnosis was residuals of a gunshot wound to the right
shoulder. The 1991 examination noted the veteran’s
complaints that the pain about the right brachium was
increasing. Forward flexion was to 60 degrees; abduction was
to 60 degrees; and external rotation was to 20 degrees.
These movements were noted to be very weak.
In January 1992, the veteran was hospitalized at a VA
facility complaining of progressive pain and weakness in the
right shoulder. He commented that he was unable to lift a
gallon of milk. He displayed 45 degrees of abduction. He
underwent an acromioplasty and limited bursal debridement.
He was noted to have a massive rotator cuff tear. Post-
operatively, he had minimal pain. A May 1992 outpatient
follow-up note indicated that he had full passive range of
motion. The impression was rotator cuff tear and biceps
pathology as a result of a gunshot wound suffered in 1951.
The veteran was examined by VA in January 1993. It was noted
that he had undergone an attempted repair of a rotator cuff
tear, which was so massive that it was irreparable. Since
this surgery, it was noted that he had been unable to return
to his job as an equipment operator. He commented that he
was unable to drive a car due to poor control of the right
arm. Forward flexion was minimal, perhaps 10 degrees, with
about only 10 degrees of abduction. External rotation was
only about 20 degrees and internal rotation was not tested
due to discomfort. Biceps, triceps and deltoid strength was
reduced. An x-ray revealed degenerative changes in the
region of the humeral head and the acromioclavicular joint.
The impression was chronic right rotator cuff arthropathy
secondary to initial cast immobilization from a gunshot
wound. It was noted that he would be unable to perform
overhead activities.
In March 1993, the veteran testified at a personal hearing.
He stated that he could raise his arm to waist level only by
bending his elbow. He asserted that his shoulder was
essentially useless. He said that he suffered from constant
pain, which extended into his forearm and was occasionally
accompanied by numbness.
After a careful review of the evidence of record, it is the
finding of the undersigned that an increased disability
evaluation for the veteran’s service-connected right shoulder
gunshot wound residuals is warranted. The evidence shows
that he suffers from residuals than can be categorized as
severe in nature. This evidence revealed that the veteran
suffered a compound comminuted fracture of the humeral head
at the time of the original injury in 1951. 38 C.F.R. § 4.72
(1994) states that the residuals of a compound comminuted
fracture are, at least, severe in nature. According to 38
C.F.R. Part 4, Code 5303, severe residuals warrant the
assignment of a 40 percent disability evaluation.
Furthermore, 38 C.F.R. Part 4, Code 5201, states that a 40
percent is also warranted when motion of the arm is limited
to 25 degrees from the side. Therefore, the undersigned
finds that the evidence supports the conclusion that the
veteran is entitled to a 40 percent disability evaluation for
his service-connected right shoulder gunshot wound residuals,
based upon his fracture history and his limitation of motion.
However, the evidence does not support a finding of an
additional extraschedular disability evaluation under the
provisions of 38 C.F.R. § 3.321 (1994). There is no
indication that this disability has resulted in frequent
periods of hospitalization. While it has caused interference
with his ability to work, it is found that the 40 percent now
assigned adequately compensates him for his degree of
functional loss.
ORDER
A 40 percent disability evaluation for the gunshot wound
residuals of the right shoulder is granted, subject to the
laws and regulations governing the award of monetary
benefits.
C. P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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